A lawyer walks into a bar

By way of Prettier Than Napoleon and The Volokh Conspiracy comes this news flash: There is a documentary about the bar exam. The moviemakers' MySpace page contains this preview of A Lawyer Walks into a Bar:

The MoneyLaw point, however, doesn't lie so much in the movie as it does in Ilya Somin's commentary on The Volokh Conspiracy:

I think many law school graduates get overly stressed out and obsessed about taking the bar, and spend too much time studying. Most bar exams are primarily just tests of memorization. They're not much of an intellectual challenge, and require far less thinking than most law school exams.

Most important, all you have to do is pass. Unlike on the SAT or the LSAT, there is no need to maximize your score. As one of my law school classmates put it, every point you score above the minimum needed to pass is evidence that you spent too much time studying. I took this excellent advice to heart, and saved a lot of time and aggravation as a result (primarily by not attending any Bar/Bri lectures, and confining my preparation efforts to reading the books and taking some practice tests). If you're reasonably good at managing your time and memorizing legal rules, you can probably do the same thing.

It's not often that a professor tells students to spend less time studying. But when it comes to the bar exam, for many students it's the best pedagogical advice I can give.

Sorry, Ilya. Though I'm often sympathetic to your views on the market economy, this simply is not good advice. Many law school graduates do get "stressed out and obsessed about taking the bar," but that's because many law school graduates flunk the bar. Yes, it's also true that "all you have to do is pass." Actual bar passage numbers show that this is more readily said than done. Every year, a not insubstantial number of recent law school graduates stride up to the bar and fail. These failures matter for a reason that is as important as it is simple: law school graduates who don't pass the bar can't practice law.

The vast majority of law school graduates lead lives and face realities that are not the lot assigned to their teachers. An academic appointment is an immense privilege in a world of finite resources and constrained opportunities, and those of us lucky enough to hold a winning ticket should refrain from treating our life circumstances as realistic benchmarks for the legal profession as a whole. Students attend law school in order ultimately to work. That is the market that counts, and the bar exam, for better or for worse, represents a very real and economically crucial first step.

US Supreme Court Loves Exxon

Thanks to investigative reporter Greg Palast for reminding us, amidst all the fuss over the US Supreme Court's recent big cases in the news - the gun rights case, and the Guantanamo detainees' habeas corpus case, among others - that the US Supreme Court just gave a huge gift, worth about $2 billion, to Exxon this past week: Greg Palast: Court Rewards Exxon for Valdez Oil Spill.

Yes, we knew it wasn't just our President, Vice President, and the other oilmen and women of the White House who were taking part in the big orgy with Big Oil. The Congress has long been in on the lovefest as well, although it has a much more discreet relationship with Big Oil - a relationship which tends to be especially discreet, if not outright deceptive, in election years. But now it seems a majority on the US Supreme Court, and not just oilman Dick Cheney's hunting partner on the Court, have joined in publicly kissing Exxon's ass (and boy does that ass stink!)

Well, at least there's one thing all three branches of our government seem to agree on.

Getting Tough On Child Rape

Soon after the Massachusetts House passed a bill earlier this month that would be tougher on the crime of child rape, the US Supreme Court set a limit on just how tough any state can be, when on Wednesday it held capital punishment for child rape to be unconstitutional. For further background on the case, see my previous post: Supreme Court to Consider Whether Death Penalty Can Be Imposed for Child Rape.

EXCERPT FROM NEW YORK TIMES ARTICLE, BY LINDA GREENHOUSE, JUNE 26, 2008:

WASHINGTON — The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday.

The 5-to-4 decision overturned death penalty laws in Louisiana and five other states. The only two men in the country who have been sentenced to death for the crime of child rape, both in Louisiana, will receive new sentences of life without parole.

The court went beyond the question in the case to rule out the death penalty for any individual crime — as opposed to “offenses against the state,” such as treason or espionage — “where the victim’s life was not taken.”

Justice Anthony M. Kennedy, writing for the majority, said there was “a distinction between intentional first-degree murder on the one hand and non-homicide crimes against individual persons,” even such “devastating” crimes as the rape of a child, on the other.

The decision was the third in the last six years to place a categorical limitation on capital punishment. In 2002, the court barred the execution of mentally retarded defendants. In 2005, it ruled that the Constitution bars the death penalty for crimes committed before the age of 18.

....

For information about Massachusetts criminal law, see the criminal law page of my law firm website.

Emily Rooney Discusses Alimony Reform

More on Massachusetts alimony reform. Boston's WGBH TV Show, "Greater Boston" with Emily Rooney, on Thursday evening, discussed recent efforts to reform alimony law in Massachusetts, including the recent push by the Second Wives Club. See WGBH's Recent Shows: "The Second Wives Club pushes for alimony reform". Appearing on the show to argue for reform was Elizabeth Benedict, whose recent Boston Globe op-ed article was discussed by me in my recent post on this topic. Also appearing on the panel were attorneys Timothy A. Taylor, the lawyer from Lincoln, Massachusetts, who drafted the alimony reform bill, and Gerald Nissenbaum, who essentially defended the status quo.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Same-Sex Marriage in California; Domestic Partnerships

As a result of the California Supreme Court's recent ruling that prohibiting gay marriage violates the California Constitution, many Golden State gay couples, who had previously registered at the state level as domestic partners, are wondering whether to dissolve their domestic partnership, before or following their gay marriage? This recent San Francisco Chronicle article sheds some light on the topic, and reports that state legislature attorneys advise that the domestic partnership need not be dissolved, prior to such any such marriage:

Same-sex couples who are registered as domestic partners do not have to dissolve that union before getting married, attorneys that advise the state Legislature said Thursday, just as county clerks and other local officials met to determine how they will enact last week's historic state Supreme Court ruling.

Given the possibility (perhaps even the likelihood, given the decisive ballot-box victory of the California Defense of Marriage Act in 2000) that California voters will turn out at polling places and amend the state constitution to prohibit gay marriage this November by passing Proposition 8, it is in fact probably advisable, though of course legally untested at this point, for gay couples to maintain domestic partner registration following and during their marriage, which would presumably remain in effect, following and despite any termination of their legal marriages due to a change in the law.

Summer wages

In honor of Deven Desai's post, Summer reading, which in turn lauds Patrick O'Donnell's fantastic bibliographies, which we may and should contemplate even as "the years are gambled and lost / like summer wages," I offer this rendition of Ian Tyson's classic cowboy tune:

Photo credit: ymirbc.com — Ymir, British Columbia; Charla Beaulieu

Never hit seventeen
When you play against the dealer
You know that the odds
Won't ride with you
And never leave your woman alone
With your friends around to steal her
She'll he gambled and gone
Like summer wages

Other versions:

1. Emmylou Harris joins Ian and Sylvia Tyson in a 1986 performance of Summer Wages (1986) (YouTube video — embedding disabled by request)


2. Nanci Griffith, 1998 cover, on Other Voices, Too (A Trip Back to Bountiful)

And we'll keep rolling on
Till we get to Vancouver
And the woman that I love
She's living there
It's been six long months
And more since I've seen her
Years have gambled and gone
Like summer wages

Chorus:
In all the beer parlors
All down along Main Street
The dreams of the seasons
Get all spilled down on the floor
All the big stands of timber
Just waiting for the falling
And the hookers standing watchfully
Waiting by the door

So I'll work on the towboats
With my slippery city shoes
Which Lord I swore I would never do again
Through the gray fog-bound straits
Where the cedars stand watching
I'll be far off and gone
Like summer wages

[Repeat chorus]

Never hit seventeen
When you play against the dealer
You know that the odds
Won't ride with you
And never leave your woman alone
With your friends around to steal her
She'll be gambled and gone
Like summer wages

And the years are gambled and lost
Like summer wages

Rating Law Schools

As some of you know from reading classbias, I have had a wonderful experience teaching in Rio for the past month. Today I was chatting with some Brazilian law professors who know about the ratings madness in the U.S. What one told me was particularly interesting since I have always felt that the best law school is the one that takes a group of students and moves them along in terms of knowledge, skill and analytical ability more than other schools. Thus, the best law school may be USN&WR number 125.

In Brazil, as in most other countries I know about, law school is a five year program starting after law school. There is a process here where students are tested in the areas of general knowledge and law when they enter law school. Students in the fifth year are also tested in those areas. The process is designed to determine if the school makes a difference and how much relative to others. This is not done every year for every school nor do I know if there is a national ranking that results but it does occur to me that this is a measure of performance unknown to those who rank US law schools. Maybe the distinction is this. You can rank a law school on the basis of LSAT, GPA, etc but that does not tell much about actual performance. Or you can rank schools on the basis what actually happens during the three years. If performance counts, the before and after approach makes sense.

As a side note, the School at which I have taught is a private school. Admission is based on an entrance exam. Numbers only. (This has changed some as the public colleges have quotas for those from public schools or who are of African-Brazilian descent and there are incentives for private schools to open up admissions more. More on this over on classbias.) The top 180 are accepted. I asked what would happen if that meant all while men. The answer was that it would not matter. I asked what the reality was. Over 50% of the admissions are women.

N.E. v. New Jersey Division of Medical Assistance and Health Services, et al.

April 10, 2008 A-2276-06T2

The Division of Medical Assistance and Health Services
correctly found that N.E. was not eligible for "Medicaid Only" benefits because, on the date as of which N.E.'s eligibility was determined, his resources exceeded the maximum amount permitted by N.J.A.C. 10:71-4.5(c), and pursuant to New Jersey's regulatory scheme, the income that N.E. was receiving and reasonably expected to receive had to be allocated to his spouse for her "Minimum Monthly Maintenance Needs Allowance" before more of his resources could be allocated to the spouse.

In the Matter of the Trust Created by Agreement Dated December 20, 1961, by and between John Seward Johnson, Grantor, et al.

April 3, 2008 (A-70/71/72-06)

Notwithstanding the trial judge’s reliance on some testimony that should not have been admitted, there was substantial credible evidence in the record as a whole to support the trial judge’s conclusion that J. Seward Johnson wanted a broad class of possible beneficiaries, including surviving spouses. The trial court’s finding that the word “spouses” was intended to include widows and widowers is affirmed substantially for the reasons expressed by the Appellate Division majority.

Mentally gifted, emotionally stunted

Michelangelo Merisi da Caravaggio, Narciso (ca. 1598)

Two tales of the mentally gifted but emotionally stunted, from different corners of a law school:

1. From the admissions office:
   
   Our heavily recruited 1L is exceptionally gifted, scored 178 on the LSAT, and sports a 4.03 undergraduate GPA, but she has always been so difficult.
   
   While many other students are thoughtful, kind, and mannerly, this student often acts like a 2-year-old. She wants the best of everything, wants it first, bawls like a baby if she doesn't get her way, and is maddeningly stubborn.
   
   She also has little self-control, is extremely impulsive, and does things right in front of law school faculty and administration even when she knows they are absolutely wrong. This behavior shows up in the way she acts with fellow students, in the way she confronts her instructors, and on those occasions when she represents the school at outside events, although she apparently acts better at home.


2. From the faculty lounge:
   
   Our highly vaunted faculty member is exceptionally gifted, landed one of his earliest articles in the Yale Law Journal, and is very proud of his 2,000 SSRN downloads, but he has always been so difficult.
   
   While most other members of our faculty are thoughtful, kind, and mannerly, this professor often acts like a 2-year-old. He wants the best of everything, wants it first, bawls like a baby if he doesn't get his way, and is maddeningly stubborn.
   
   He also has little self-control, is extremely impulsive, and does things right in front of his colleagues and his students even when he knows they are absolutely wrong. This behavior shows up in the way he ignores his students, in the way he abuses law school staff, and in his egotistical disdain of his colleagues, although he apparently acts better at home.

Click on the flowering narcissus to crack this conundrum

Both tales, of course, are nothing but lightly modified versions of a classic advice column letter to The Washington Post. The original subject of these laments was the writer's "beautiful 9-year-old daughter." It is more regrettable than it is remarkable that those sentiments can so readily describe law school stars — the tuition-paying variety as well as the tuition-collecting sort. Legal academia could do worse than embracing the advice that The Post gave to that exasperated mother: "Firstborns often think they deserve more than their younger siblings, but your eldest is taking her sense of entitlement way too far." Substitute prime donne for firstborns . . . . . You get the idea.

The admissions office version of the story is more readily understood but less readily remedied. The rankings-driven game of law school admissions drives admissions directors and committees everywhere to prize exactly one trait — apparent achievement in fields demanding raw analytical power — above all others and to the frequent detriment of other traits that law schools, the legal profession, and society at large should all prize. But the admissions offices of law schools everywhere are trapped in the beggar-thy-neighbor game that rankings fuel, and no easy cure lies in sight.

Faculty hiring should be different, but often it isn't. Some and perhaps all law school faculties suffer from a marginal propensity for hiring odiously selfish colleagues, perhaps even an Arschloch so extreme as to be the worst law professor in America. One might imagine that slavish dedication to the rankings might propel this sort of mistake, but the situations seem awfully dissimilar. It's one thing to admit a grotesquely selfish student, or even to unleash her on the profession, but it is an altogether horrifying prospect for a faculty to entrench a relatively young Arschloch among its ranks. You have to share breathing space with this jerk! Imagine how much worse matters can be if you overpay Professor Arschloch, grant him tenure, and hire his superficially charming, insidiously destructive spouse. That power couple has the potential to suck your law school dry for four decades for $1 million to $1.5 million during every three-year cycle typically needed to confer the degree of juris doctor.

Here is a somewhat different way of quantifying the damage from hiring (and tenuring) even one mentally gifted, emotionally stunted faculty member. Conservatively speaking, a law school would commit the cash flow from an endowment valued between $2.5 million and $3.5 million for four decades in order to pay salary and benefits to an imprudently appointed Arschloch. Four decades' payouts come close to exhausting the entire value of the endowment. It's easy to double or triple the damage: hire the spouse, grant either or both an otherwise unfunded "center of excellence," agree to finance boondoggles foreign and domestic. A total bill of $8 million in wasted endowment value doesn't seem unreasonable.

That, at any rate, is the price tag attached to awful hiring. You might think — and I fervently hope — that the legal academy has ample incentive to solve this problem. On the other hand, it may simply be our fate as lawyers, or at least as law professors, to be drawn like bees to the bloom to mentally gifted, emotionally stunted individuals. After all, that description fits far too many of us, both in the broader legal profession and in the little corner we call legal academia.

Massachusetts Lawyers Weekly Blog

Massachusetts Lawyers Weekly has started its own blog recently.

The new blog, The Docket, promises to cover "breaking stories and noteworthy information from the Massachusetts Lawyers Weekly newsroom. If it impacts Massachusetts lawyers, we’ll be blogging about it here."

As the blog is published by our state's legal newspaper, it will likely prove to be a useful resource, and so I have put it on my blogroll, and have also added its feed to the news feeds which appear on the right column of my blog. Hat tip to Real Estate Space.


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Some recent developments in legal education

For Northwestern Law's new two-year JD curriculum, see here, here, here, here, and here (among others).

For Thomas Sowell's take on the rankings, see my post here.  

So you want to be a law clerk?

Behold So You Want to Be a Law Clerk?, which touts itself as "[a] place to find the latest federal law clerk openings, advice about the application and interview process, and, in general, how to land that coveted offer."

As an example of this site's content, consider this poll currently on its front page:

If presented with two offers, which would you accept, a clerkship with a federal district judge in the S.D.N.Y. or a clerkship with a federal appellate judge on the 10th Circuit?
S.D.N.Y 10th Cir.

Hat tip: A discussion board on the "best schools for clerkships/academia" at Top Law Schools.

Self-Directed IRAs and Real Estate Investing

Self-directed IRAs, for real estate investing and for other purposes, are gaining in popularity. One company that offers self-directed IRA services, Pensco Trust, has put together a plain-English overview that is recommended background reading for anyone who is interested in learning more about self-directed retirement account investing options:

Pensco Trust Self-Directed IRA Top 50 FAQs [Link opens a PDF document.]

At the pit of hell lives a Blue Devil

In addition to its immense wealth, Duke University enjoys a rich sports tradition. There's the basketball program, to be sure, but don't forget Bull Durham and the 1942 Rose Bowl. Despite all that, Duke has the gall to argue — with factual but not legal accuracy — that its football team is so bad that Duke University owes the University of Louisville no damages for breaching a contract to pit the Blue Devils against the Cardinals.

Boo, hiss. This is yet another reason for all Kentuckians — indeed, all decent Americans — to despise Duke. Further details in The Cardinal Lawyer and Danzig U.S.A.

Hat tip: Red Lion Reports.

You're no good: An ongoing MoneyLaw series

You're no good
Linda Ronstadt, You're No Good, Heart Like a Wheel (1974): Feeling better now that we're through Feeling better 'cause I'm over you I learned my lesson, it left a scar Now I see how you really are

Many things in academic life are simply no good. The task of identifying these things falls happily to MoneyLaw.

This ongoing series will highlight aspects of academic life that seem as inevitable as they are entrenched, but in reality deserve to be scrutinized. MoneyLaw undertakes this project in the belief that no academic practice is so sacrosanct that it cannot be questioned. Indeed, it should be an academic leader's calling to expose, perchance ultimately to reform or even to overthrow, those practices that are corrosive of academic values and the interests of higher education's true constituents. To get things started, I'll give this forum's readership a hint: Among the three T's most familiar in higher education and its finance — tuition, taxes, and tenure — only two are familiar to the system's true constituents.

True to MoneyLaw's belief in the wisdom of crowds, I invite readers to nominate practices, customs, and expectations that — in Linda Ronstadt's simple and persuasive way of expressing the point — are no good. Fire away in the comments to this post. As Linda would say, it's so easy.

Silver threads, golden needles, and ClassBias

As homage to Class Bias in Higher Education and the proletarian rage that Jeff Harrison so eloquently expresses, I offer one of the many versions of Silver Threads and Golden Needles now playing at Danzig U.S.A.:

I grew up in faded gingham where love is a sacred thing You grew up in silk and satin where love's the passing game I know now you never loved me, and I know I was a fool To think your pride would let you live by the golden rule

Academics Discuss California Same-Sex Marriage Case

I have compiled a list of articles by academics on the California same-sex marriage case; most of them appear at Findlaw's Writ. I have listed them here in chronological order, which may be useful if you are going to read them all, as many reference the previous articles. If you don't have time to read them all, I would suggest reading at least the last three - the two Grossman and McClain articles as they provide the best general overview and analysis, and Andrew Koppelman's piece, which helps to fit the case into a broader, national and historical perspective. (I wish I had time to write my own article on the subject right now, particularly to compare and contrast the California decision with the Massachusetts decision, as there are many more interesting points to be made. Maybe later.)

The California Same-Sex Marriage Ruling: What it Says, What it Means, and Why It's Right (Michael Dorf, May 19, 2008, Findlaw)

The California Supreme Court's Gay Marriage Opinion: The People of California Have the Power to Undo It By a Ballot Initiative Amending the State Constitution, But How Far Should That Power Extend? (Vikram Amar, May 22, 2008, Findlaw)

The California Supreme Court's Decision Equalizing Marriage for Gay and Straight Couples: Did the Court Overstep? (Edward Lazarus, May 23, 2008, Findlaw)

The California Supreme Court Rules in Favor of Marriage for Same-Sex Couples: Why Domestic Partnerships Are Not Enough (Part One in a Two-Part Series of Columns) (Joanna Grossman and Linda McClain, May 27, 2008, Findlaw)

The California Supreme Court Rules in Favor of Marriage for Same-Sex Couples: How Conservative Reasons Led to a Progressive Result (Part Two in a Two-Part Series of Columns)(Joanna Grossman and Linda McClain, May 28, 2008, Findlaw)

State of Chaos? (Andrew Koppelman, June 6, 2008, Balkinization Blog)


For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

The Iraq War, Oil Industry War Profiteering, and High Gas Prices

Greg Palast, in his article of several weeks ago, discussed the 500-pound elephant that is still in the room: Driving the Surge in Gas Prices? The Bush-McCain surge in Iraq. Even the Democrats, who have called for a "windfall profits tax" (what Greg Palast says should be called a "war profiteering tax"), seem to talk mostly about the increased demand for oil (mainly in China) as the dominant factor in the recent increase in world oil prices, and the resulting increase in gas prices at the pump.

But a huge factor over the past five years has been on the supply side as well, and the decrease in the supply in Iraq in particular. It was not until the end of 2007 that oil production in Iraq had finally returned to its early 2003, pre-war level. During the past five years, production from Iraq has been way, way down, and world prices have gone up, up, up. Had supply from Iraq been higher, prices would not have risen as fast.

Remember, the Bush neocon Wolfowitz told us that after we invaded Iraq, we would be able to pump enough oil in Iraq essentially to pay for the war and for reconstruction? Well, of course that didn't happen. That was just one of the many big lies of the Bush administration. Instead, we have been paying in many sad, painful ways for this war, and future generations in this country will pay most of the financial costs of this terrible war.

Meanwhile, Big Oil (which, together with the neocons, brought us into this war) has made out like bandits, as relative supply and demand have continued to bring oil prices up and up and up. Then of course there are the other big corporations, such as Blackwater, Halliburton/KBR, CACI and Titan, that are making a more direct killing onsite in Iraq; for dirty details on this direct war profiteering, see Robert Greenwald's documentary Iraq for Sale: The War Profiteers.

It is apparent from the right side of the chart above, from the zfacts.com site created by economist Steve Stoft, that there has been a dramatic increase in gas prices from 2003 to date, precisely the long years of the most recent Iraq War. Yes, China has been booming during that period, and worldwide demand for oil has increased. But supply from Iraq, which is home to the world's second largest proven oil reserves and is still controlled in fact by the United States, has been way down because of the war we started there and which we are still conducting there.

I wonder if the Democrats refuse to make this obvious connection - to talk about the elephant in the room - for fear of how it will sell politically. I do want Obama to be elected. I support him, and I assume he has great advice as to what he should say and shouldn't say. But his silence on this issue makes me wonder if our whole nation is still unable to accept the depressing realities of Big Oil, the war, and windfall profits, or "war profiteering." More likely there is a more depressing reason for the silence: the Democratic Party still lacks the courage to challenge the war industry and Big Oil. One thing is for sure, however: the Republican Party, and McCain, have completely sold out to Big Oil, and the war establishment, just like the Bush Family has done long ago. We have no choice but to go with a Democratic President if we want to have any hope of ever ending the madness.

EXCERPT FROM GREG PALAST'S ARTICLE:
....
In 2002, after Bush Junior took power, the top ten oil companies took in a nice $31 billion in profits. But then, a miracle fell from the sky. Or, more precisely, the 101st Airborne landed. Bush declared, “Bring’m on!” and, as the dogs of war chewed up the world’s second largest source of oil, crude doubled in two years to an astonishing $40 a barrel and those same oil companies saw their profits triple to $87 billion.

In response, Senators Obama and Clinton propose something wrongly called a “windfall” profits tax on oil. But oil industry profits didn’t blow in on a breeze. It is war, not wind, that fills their coffers. The beastly leap in prices is nothing but war profiteering, hiking prices to take cruel advantage of oil fields shut by bullets and blood.

I wish to hell the Democrats would call their plan what it is: A war profiteering tax. War is profitable business – if you’re an oil man. But somehow, the public pays the price, at the pump and at the funerals, and the oil companies reap the benefits.

Indeed, the recent engorgement in oil prices and profits goes right back to the Bush-McCain “surge.” The Iraq government attack on a Basra militia was really nothing more than Baghdad’s leaping into a gang war over control of Iraq’s Southern oil fields and oil-loading docks. Moqtada al-Sadr’s gangsters and the government-sponsored greedsters of SCIRI (the Supreme Council For Islamic Revolution In Iraq) are battling over an estimated $5 billion a year in oil shipment kickbacks, theft and protection fees.

The Wall Street Journal reported that the surge-backed civil warring has cut Iraq’s exports by up to a million barrels a day. And that translates to slashing OPEC excess crude capacity by nearly half.

Result: ka-BOOM in oil prices and ka-ZOOM in oil profits. For 2007, Exxon recorded the highest annual profit, $40.6 billion, of any enterprise since the building of the pyramids. And that was BEFORE the war surge and price surge to over $100 a barrel.

It’s been a good war for Exxon and friends. Since George Bush began to beat the war-drum for an invasion of Iraq, the value of Exxon’s reserves has risen – are you ready for this? – by $2 trillion.

....

How The University Works

All MoneyLaw readers should be reading Prof. Marc Bousquet (media studies, Santa Clara), editor of How The University Works (and currently guesting at The Valve, a literary studies blog).

Of particular interest might be his suggested Academic Labor Bookshelf, and the posts Teach the University! and High Noon for Academic Freedom.

The Quiet Desperation of Academic Women

That's the title to this article in Inside Higher Ed, on a new study by Kristen Monroe (who happens to be a former professor of mine when I was a political science major at UCI). Here's the abstract of the paper (full article available with academic subscription).

From the article (I am probably excerpting too generously, but it's a 20 page article):

Employment patterns in the academy reflect the pattern in the larger professional world; positions with higher status, power, and remuneration are generally dominated by males. While graduate enrollment in degree-granting institutions (figure 1) has been over 50 percent female for more than a decade (moving from 56 percent in 1996 to 58 percent in 2001), women accounted for only 44–45 percent of the recent Ph.D.s awarded, only 38 percent of the fulltime faculty in all institutions of higher education, and slightly more than 15 percent of the tenured and tenure-track faculty in “top” departments.7 In general, tenured professors are four times more likely to be male (80 percent of tenured faculty in 2001 were male), while tenure-track (65 percent male) and nontenure- track (61 percent) employment move somewhat closer to the average.

The aggregate statistical data thus suggest academia as a whole fares no better than the general workforce at large in terms of gender equity. Women are still underrepresented in almost all disciplines, and men are more likely than women to hold tenure track positions, be promoted to tenure, achieve full professorships, and be paid more than women of equal rank.

Statistics provide one view of the situation for women; anecdotal data and biographies offer further insight.The more detailed qualitative work on women in academia suggests a dismal picture: a rigid system of rewards that makes scant allowance for deviation from the traditional male model, high levels of isolation, stress and fatigue among female faculty, continuing unconscious and deepseated discrimination and stereotyping by male colleagues, and a remarkably unbreakable glass ceiling.

One common solution to discrimination is to increase the number of power holders who are members of the discriminated group. Our interviews suggest a more complex relationship of women to power, status, and office holding. Just holding office is not always enough to ensure change.

Women were delighted about the increase in female chairs, deans, or central administrators; some considered that these increases signaled genuine improvement. Too often, however, a woman’s holding of this position would devalue or minimize it somewhat, casting it into the service mode, not the power mode. We heard this comment so frequently across all disciplines that we finally named it gender devaluation. Gender devaluation refers to the subtle process by which administrative positions lose their aura of status, power, and authority when held by women. These positions often become treated as service or support roles until they are reoccupied by men. So, for example, being a department chair could be viewed as a position of power or one of service. When a man is department chair, the position confers status, respect, and power. When a woman becomes department chair, the power and status seem diminished, and the service dimension becomes stressed.

Other women told how their accomplishments—being elected to a scholarly academy, an office in the professional association or international society, even receiving outside job offers—were routinely written off by their male colleagues as simply reflections of affirmative action, not the woman’s own accomplishments.

Service differentials often resulted from subtle forms of discrimination. Some instances centered on different expectations of men and women and differences in the way the same behavior was evaluated, depending on the gender of the person performing the act. Women take on these service tasks, despite knowing the disadvantages of spending their time on duties for which they will not be rewarded, because they also recognize that such positions enabled them to open things up for other women.

How effective are existing legal mechanisms in protecting women? If women use these mechanisms, are they stigmatized for doing so? Our speakers suggest that the benefit of legal mechanisms is unclear but the costs associated with pursuing legal remedies are real and high.

Our speakers were extremely adept at detecting the Academy’s cultural cues. Most feared backlash and retribution if they agitated openly for change, so they rejected overt collective activism in favor of more subtle, nonthreatening collective actions. Whereas overt activism tries to directly change power and institutional structures, collective action—as we conceptualize it—refers to organized efforts to improve women’s conditions in the university through more proactive interpersonal processes. The most uniform and enthusiastic recommendation of this type was to expand and reconceptualize mentoring programs. Women especially valued mentoring from women, which provide both role modeling and concrete illustrations of alternative life choices to the traditional male model.

Finding that women reject legal and administrative mechanisms in favor of the subtler collective action proposals noted here reflects other findings in the literature. A more surprising result is the extent to which UCI faculty women fell back on a model of individual responsibility for their situation. Ironically, if not surprisingly, several of our women noted one important and insidious aspect of discrimination; they felt they had to do more to succeed than their male counterparts. While many lamented this, few seemed angered. This was closely related to the fact that these women demonstrated acute understanding of the authority of the university in considerations of family obligation and therefore adapted their experience of inequality to an individual model of responsibility. In this way, most did not relate their own experience with discrimination in broader political terms so much as they deemed it an individual problem they had to address on their own. They held themselves to high standards and interpreted their failures less to gender discrimination and more to their own shortcomings.

Two points are striking, as we listen to the sense of quiet desperation in the choices faced by these women. First, uniformly the UCI women believed the tension between career and family/children is a fact of life for all professional women. It is not unique to UCI, or to academia. Second, we heard a surprising lack of anger. Few women asked for institutional intervention toward a more just reconciliation between the commitment to family and the commitment to career. From the standpoint of institutional reform, then, these are not efficacious voices. These are voices of struggle, denial, and helplessness, ultimately lacking the empowering strategies to handle or change their seemingly intractable circumstances. They are not voices that see the personal as political. This process of internalizing responsibility also occurred in descriptions of both the subtle forms of discrimination and descriptions of overt ones. Stories of both types of discrimination, however, were closely linked to an institutional climate more concerned with bureaucracy and what several speakers called “window dressing” than with ethics. This linkage suggested the lack of political demands may represent a shrewd and knowing calculus on the part of policy savvy women who realize such politicization is doomed to fail in eliciting a positive institutional response.

Here, our interviews suggested specific findings relevant for reform and pointed to several strategies useful in dealing with gender inequity in society at large, not just academia. First, having more women and minorities in positions of power helps sometimes but is not enough. As a general reform, the concept of professional success needs to be redefined so it allows for alternative models, not simply the traditional, linear male model in which the professional is full time and focused on a career, with few family duties. An important aspect of this issue concerns the extent to which the male model also traps men into stereotypes, making it difficult for individual men to break out of traditional roles, if they so desire.We find the human dimension of this issue largely ignored in the feminist literature and believe a new model, which displaces both the traditional male model and the exploited female model, would be greatly welcomed.

Second, as part of this general reform, specific policies can help. Institute longer tracks to tenure and allow for maternity and family leave time. Ensure that legal mechanisms are in place and that they actually work since our interviews suggested such policies that do exist are in place but unobserved in reality. Third, as part of this general re-shifting in the professional model, recognize that women who are professional frequently have husbands who also are professionals, and institute career partner-hiring policies. Finally, institute a comprehensive andreconceptualized mentoring program, so that all faculty—not just women—are automatically entered into it. This will help remove the stigma of participating in formal mentoring. Mentoring also should be extended beyond tenure. Doing so would recognize that the requirements for professional growth are on-going and existing career models make it difficult to conceptualize one’s way out of situations often held irreconcilable, such as the tension between children and career. Such reforms recognize the difficulties of progressing up the academic ladder and respond to the need for continuing institutional efforts to help crack what remains a glass ceiling for women in academia.

Read the rest of this post . . . .And from IHE:

Asked for a reaction to the study, Irvine released a statement criticizing it. “Professor Monroe’s article draws attention to the persistence and toll of sex discrimination on women faculty. Unfortunately, the article cannot to be said to offer original insight into the promise and challenge of gender equity in higher education. The formulation of the problem overlooks research in a host of related issues, such as gender schemas, work-life balance, and leadership development among others,” the statement said.

The Irvine statement went on to cite progress for women on a number of fronts, noting that women on the campus hold such positions as vice chancellor of research and deans of the graduate division and of undergraduate education. Women account for 43 percent of assistant professors, 37 percent of associate professors, and 22 percent of full professors. Those figures are going up in science and technology fields too, Irvine noted, and women now are 37 percent of assistant professors, 31 percent of associate professors and 18 percent of full professors in those disciplines.

The statement added that “Professor Monroe does not appear to be informed about campus and university engagement with gender equity or for that matter family-friendly accommodation policies and procedures.”

In an interview (prior to when Irvine released its statement), Monroe said that she would be interested to see how the university responded and that she hoped it would be positive. She noted — as the reported noted — that many of the concerns expressed in the study didn’t have to do with official policies or programs, but with more subtle questions.

In her career she was helped by good advice she received early on from mentors. She was urged to agree to serve on one universitywide committee and one departmental committee and never more. She was also urged to work from home in the mornings, so she couldn’t be drafted into other meetings, and would always have focused time for research. Monroe said that as a political scientist, she had that option in a way that a lab scientist would not. While Monroe said she was able to have a family while succeeding in academe (in part because of choices her husband made), she said that talking to women about their choices was in many cases “heartbreaking.”

I am lucky enough to have an advisor (who of course also does work/family law) who gives me the same advice: be savvy about negotiating at which Step I begin my position, consider the faculty development budget I'm allowed, try to limit participation in service committees, negotiate my initial teaching load, and pay this forward by giving similar candid mentoring advice to my students. And I too, may be able to have a baby pre-tenure. This is wonderfully candid, savvy advice, and much less depressing than hearing "just don't have a baby, ever" or "it's impossible to advance far in the legal academy if you want work/life balance." I am not suggesting I want to be pampered with a 1-1 teaching load, no service/committee requirements, or plan to have a baby as soon as I'm hired. But I am suggesting that we, as an academy, have to recognize the increasing diversity of the academic ranks--our student bodies have almost equal numbers of women and men--should not our faculty ranks also reflect this? We, as an academy, might decry the "mommy track" of law firms, as some of our best and brightest students are pushed to the sidelines as their work is valued less than their male colleagues. We should also decry the deleterious gender disparity that our own system often engages in: sidelining women faculty into lower status, non-tenure track positions, unrewarded service commitments, and failing to provide institutional resources for those faculty (male or female) who must balance work and family demands.

The defensiveness of UCI's response highlights the institutional recalcitrance to both legal and non-legal reforms. It is one thing to change policies. It is quite another to change culture, and institutions are reluctant to admit that their professional culture and structure produce an environment that is contradictory to their egalitarian ethos and cultural values. Academia shuttles back and forth between its elitist nature and its egalitarian (Dewey-esque Democracy as Education) project: I am not saying that we must lower standards in the academy for tenure, service, and teaching. I am saying that we, as an academy, must reevaluate our supposed "meritocracy" to ensure that good scholarship is rewarded, and not merely good institutional citizenship. Silence and complacence should not be rewarded, as if those suffering from overt and subtle discrimination must just accept their position in the white-male dominated legal academy. Rather, the academy itself must feel responsibility to change its structure and culture to accommodate the changing face of the academy--a changing face it says it wants, but for the lack of qualified, meritorious candidates. Make the conditions ripe for merit, and it will show itself.

Hat Tip: Feminist Law Profs.

New Hampshire Family Law Blog

I just found a relatively new family law blog, which is off to a great start, in neighboring New Hampshire - the New Hampshire Family Law Blog, which is written by Kysa Crusco, who practices law in Manchester, New Hampshire. I'm happy to welcome her blog to my blogroll and to the greater family law blog family. I should add that although Kysa Crusco is practicing law just over the border in New Hampshire, her bio states she was educated (high school, college and law school) in the great state of Massachusetts.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Almost purgatory

Ending a tenure as brief as it was tumultuous, West Virginia University president Michael Garrison will resign, effective September 1. After six weeks of shielding Garrison from outraged faculty, students, and alumni, WVU's Board of Governors swiftly accepted Garrison's resignation on June 6.

The full story in brief: Garrison was appointed WVU's president in April 2007 over the strenuous objections of that university's faculty, which cast a vote of no confidence even before he had been chosen. To his office, Garrison brought an impressive arsenal of political connections, but no academic experience. He has spent roughly half his tenure battling a scandal that arose because neither he nor his subordinates could answer a straightforward question: Did Heather Bresch, chief operating officer of the pharmaceutical firm Mylan, Inc., earn an executive MBA from WVU? The answer, as an investigation by WVU ultimately concluded, was no . But WVU initially answered "yes" and granted an MBA it later rescinded. Bresch is the daughter of West Virginia's governor, Joe Manchin III, and Mylan was one of Garrison's most prominent lobbying clients. And though Garrison did not attend the fateful meeting at which WVU decided to award the contested eMBA degree to Heather Bresch, his chief of staff appeared to have presided.

The body count so far: West Virginia University has lost its president, its provost, and the dean of its business school. Adhering to the instinct that the most straightforward version of a story probably lies closest to the truth, I regard the whole episode as a painful but ultimately triumphant vindication of academic virtue over the politics of corruption and the culture of complacency.

That said, given this forum's explicit embrace of youth in academic administration — Michael Garrison will have been appointed to and ousted from the presidency of his alma mater before the age of 40 — and this forum's willingness to contemplate university administrators whose greatest accomplishments lie outside the academic realm, the Garrison fiasco warrants a brief moment of contemplation.

Click on Dante to read the rest of this post . . . .

Yes, I have extolled the "challenging but exhilarating" adventure that "infuse[s] managerial and (most of all) entrepreneurial responsibilities into the strictly academic calling of a [university] professor," going so far as to laud the "portmanteau expression for this blend of management, law, and the intellectual life: MoneyLaw." But it behooves the academy, at the end of the grim season that West Virginia University has endured, to remember that there truly are candidates for university administration who combine business acumen with academic accomplishment. Perhaps M. Duane Nellis, provost at Kansas State and an accomplished academic geographer, was such a candidate. Provost Nellis undoubtedly has been the subject of much thought and discussion in Morgantown, where he once served as dean of WVU's college of arts and sciences and was passed over in favor of Michael Garrison as president of WVU. Those of us who love the state of West Virginia can only hope that its flagship university will right its course soon and regroup in the aftermath of the Bresch-Garrison scandal.

The larger lesson is this: The list of qualities needed in academic administration includes not only talent — whether that talent is defined in academic or in entrepreneurial terms — but also character. Now abide these three: academic achievement, business acumen, and character. And the greatest of these is character.

West Virginia, so the balladeer tells us, is almost heaven. West Virginia University, in recent memory, has felt at best as though it were almost purgatory. A reading from W.S. Merwin's translation of Dante's Purgatorio seems in order:

W.S. Merwin reads the first two stanzas of Purgatorio	Merwin's entire 25-minute reading from his translation of Purgatorio
Per correr miglior acque alza le vele omai la navicella del mio ingegno, che lascia dietro a sé mar sì crudele; e canterò di quel secondo regno dove l'umano spirito si purga e di salire al ciel diventa degno.	To course on better waters the little boat of my wit, that leaves behind her so cruel a sea, now raises her sails, and I will sing of that second kingdom in which the human spirit is made clean and becomes worthy to ascend to Heaven.

MoneyLaw: The art of winning an unfair academic game

»  Cross-posted from The Cardinal Lawyer  «

I presented MoneyLaw: The art of winning an unfair academic game on June 14, 2008, at the University of Louisvlle's Weekend College event in Los Angeles. The presentation summarizes many of the things I have articulated in this forum.

And now for a MoneyLaw multimedia bonus — what could be more appropriate than Sheryl Crow's signature anthem on good times in Los Angeles?

Father's Day Gift From the MCAD

Just in time for Father's Day, and much to the apparent dismay of employers, the Massachusetts Commission Against Discrimination recently gave a surprise gift to working fathers in this state. It seems the Massachusetts Commission Against Discrimination is now really getting serious about the issue of discrimination against men, and has abruptly decreed that the Massachusetts Maternity Leave Act applies to men. See Massachusetts Maternity Leave Act Applies to Men - Boston Employment Lawyer Blog and Massachusetts Lawyers Weekly - Men now eligible for maternity benefits.

From these reports, it appears that men may only be getting this equitable treatment now because someone figured out that continuing to discriminate against men in general would require discriminating against gay men as couples. As MCAD commissioner Martin Ebel put it:

If two women are married and adopt a child, then they are both entitled to leave under the [MMLA], and yet if two men are married and adopt a child, they would be entitled to no leave under a strict reading of the statute. That result was troubling to us, and we didn’t think it was in keeping with our mandate by statute, which is to eliminate, eradicate and prevent discrimination in Massachusetts.

Now, I have to wonder, if "maternity leave" can so easily be transformed into "parental leave," what exactly will be next? Will we have a federal Violence Against Men and Women Act(VAMWA), to replace the Violence Against Women Act(VAWA), in long-overdue recognition of the fact that domestic violence goes in every direction, male on female, female on male, male on male, and female on female? At last, will there be equal rights for male victims of domestic violence? I'm not holding my breath. But maybe equality is contagious.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Divorcing, But Still Living Together, in a Bad Housing Market

There's a great article in today's Boston Globe Sunday Magazine, by Lisa Prevost, about the effect of the declining housing market, and the credit squeeze, on divorcing couples, many of whom are now forced to stay together longer than they may have wanted or intended: Two Exes, One Roof - The Boston Globe ("Two Exes, One Roof - What happens when a divorcing couple meet a slow housing market? Usually, it's not pretty.") As you can see from the excerpt below, I am one of the attorneys quoted in the article.

"DESPERATE" IS AN APT DESCRIPTION FOR ANY NUMBER of homeowner scenarios these days, as declining home values and tighter credit continue to squeeze sellers. When it comes to divorcing couples, however, the steep drop-off in housing sales is making some bad situations truly awful. Dramas are playing out across the region as couples who no longer want to stay together, but can't afford to live apart, are winding up prisoners in their own homes. Either houserich and cash-poor, or simply overextended on all fronts, these couples are retreating to the far corners of their houses as they await the buyer who will free them.

Family law attorneys, mediators, and real estate professionals say that while this scenario isn't necessarily new, its rising incidence is very much a sign of the times. Divorcing couples who borrowed heavily against their homes when values were soaring several years back are now scratching for enough equity to cover their mortgage, lawyer bills, and a fresh start. The financial strain is forcing more of them to stay put until the house sells, a situation that is almost always very uncomfortable.

"In a number of my cases, couples are sharing houses but using separate bedrooms, and it remains to be seen what impact all of this will have on the children," says David A. Hoffman, an attorney, mediator, and founder of the Boston Law Collaborative.

....

Barbara Shapiro, a certified divorce financial analyst and vice president of HMS Financial Group in Dedham, agrees that the sliding market is forcing more divorcing couples to remain housemates. The cases she sees typically fall into one of two categories. "You have the couple that's already divorced and had decided they were going to split the house once it's sold. And they can't sell it, or it doesn't make sense to sell it. So they're scrambling to adjust," she says. "And then there are people who are saying, 'We can't get divorced - we can't afford it.'"

The latter sentiment turned up unexpectedly in a divorce case handled last year by Steven Ballard, a lawyer in Worcester and Wellesley. He was representing a woman in particularly bleak circumstances: She had a restraining order against her husband, who had moved back in with his mother. The wife worked but couldn't cover the mortgage payments and expenses on their house without her husband's income. Because they owed more than the house was worth, foreclosure loomed as a possibility. Still, Ballard didn't see taking the husband back as an option. Much to his dismay, his client did. The couple reconciled. "I'd seen financial problems lead to divorce," Ballard says, "but I hadn't seen it save a marriage."

....

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Massachusetts Alimony: Time for Reform?

In yesterday's Boston Globe appeared an op-ed article by novelist Elizabeth Benedict, critical of the Massachusetts alimony law and application of that law by courts in this state: Elizabeth Benedict: Boston Globe Op-Ed: The chilling effect of state's divorce laws. I actually know Elizabeth Benedict, and as one of the lawyers she talked to before writing that article, I must say that I welcome her criticism, even though I believe she may be, as I have told her, exaggerating the extent of the problem she sees.

Her problem is mostly with lifetime alimony awards and with what she rightly sees as the inconsistent, unfair application of alimony law. Of course, I have no doubt that the cases she discusses are real, and it only takes one bad experience in family court for any one person to be turned off and disillusioned with the whole process.

The main point that should be taken away from her article, in my opinion, is that the law on alimony is so vague as to permit a huge divergence of results, from one case to another. I would add that these results often depend on factors that should not be important and determinative: they are factors primarily related to the quality and experience of the judge, rather than factors actually relating to the facts of the individual cases.

In my experience as an attorney, I have been able to end lifetime alimony awards, as lawyer for men in each case, in every case where it was justified and where my clients and I tried to do so. However, in those cases, my male clients did not even come to me to try to eliminate the alimony until their children were emancipated and their exwives were working fulltime and earning as much as, or more than, they were. In other words, we had very strong cases to end alimony. And yet, although the cases did not require trial, they were at first hotly litigated cases, and they were hardly the walks in the park that they should have been.

I am happy to see Elizabeth Benedict join other disgruntled second wives and girlfriends in trying to help men to right this wrong in Massachusetts family law, particularly by supporting the enactment of HR 1567, a relatively unambitious, but sensible bill that, as Benedict notes in her piece, has been given an unceremonious legislative death as the bill was quietly committed to further "study."

We have long needed better guidance and clearer laws on alimony - and in the related area of child support as well, I hasten to add - that cover the needs of today's divorcing and separating parents and spouses. The child support guidelines have numerous flaws and do not cover those with combined incomes of $135,000 or more, exactly the group of people, interestingly enough, who are most likely to hire lawyers for their court cases. Such a situation leads intelligent people like Elizabeth Benedict to understandable cynicism about the legal process, and about lawyers themselves. And so Elizabeth Benedict states as follows:

The Massachusetts and Boston Bar Associations have created a task force to study problems stemming from lifetime alimony, but it will be months before their recommendations, if any, will be made public. They may eventually support new guidelines for judges, not new legislation, which would clarify and simplify. They prefer ambiguity and case law, which produce more billable hours.

The crux of the problem is there is no agreement on a formula, or a uniform set of guidelines even, for alimony, and the law of alimony is essentially the same long list of statutory factors that are supposed to be taken into account in determining the division of assets upon divorce (M.G.L. ch.208, section 34). See the Massachusetts divorce statute here.

One former judge, Judge Ginsburg, formerly of the Middlesex Division of the Probate and Family Court, who in fact created his own alimony formula (called "the Ginsburg formula") which he, and some others, have used on an informal basis, especially back when he was still a judge, wrote an article, back in 1997, which is surprisingly still very relevant today: "The Place of Alimony in the Scheme of Things," Edward M. Ginsburg, Massachusetts Family Law Journal, Vol 14, No. 5 (January 1997). Sorry, but I can't find an online link to that article. In that article, then-Judge Ginsburg pointed out that there is precious little in the way of guidance in how to deal with different kinds of cases (short-term, mid-term, long-term marriages) and how to structure awards, both in terms of amount and duration. Well, not much has changed in the past eleven years, in statutory or case law, since Judge Ginsburg wrote his article, to alter this basic reality.

And what little new case law we do have has not remedied this problem. As pointed out by Massachusetts Attorney Peter Gossels in this Massachusetts Lawyers weekly article from February 5, 2007, the law as it still stands permits "predator spouses" to enter into short-term, childless marriages, and extract huge sums of money through alimony. See the Gossels article, both for another extreme example of how the vague alimony law can lead to an unfair result, and for a great discussion about some of the problems and limitations created by the case law on alimony.

However, as a practicing lawyer, I do believe there has been a positive change - despite the continuing existence of some rather unfair case results - in the way most judges are applying the broad, vague law. I believe judges over the past ten years have become far less likely to award alimony in cases where alimony is undeserved, they have been increasingly likely to expect former wives to work, or to go back to work, and they have become increasingly likely to apply the gender-neutral laws in a gender-neutral way. This positive change in the way that law has been applied, in fact, is one advantage, perhaps, of the law being as vague as it is. But all is not as it should be. Not yet. And I do believe there should be better guidance, and it should be statutory.

As long as judges have such wide discretion, with these vague laws in effect and in the absence of clear guidelines for different types of cases, judges will continue to be free to consider all the relevant statutory factors on a case by case basis. The question of whether we want the legislature to improve the law of alimony will then come down to whether we want to trust each individual judge to make the right decision when each one has such extremely wide discretion in making findings.

Although I trust most judges to try to do the right thing most of the time, I do believe they all need clearer laws and better guidance, for the sake of consistency and fairness.

Finally, Elizabeth Benedict's comments, both directly to me, and in this op-ed piece she wrote, give me hope for the future. I am encouraged to see such talented, intelligent, accomplished women recognizing the injustices often faced by men in family court. Benedict joins the ranks of another great writer, formerly a regular columnist at the Boston Globe, Cathy Young, about whom I have spoken favorably several times in this blog before.

Also, in this respect Benedict joins another acquaintance of mine, Iris Tanner, a cabaret singer, who long ago gave me a copy of her CD "Fresh Cut Iris" when I could not attend her appearance many years ago at Jimmy Tingle's Comedy Club, where she sang her original song Don't Get Married in Massachusetts (If You're Male).

It's a hilarious song by a woman who admitted in introducing the song on stage that she had been inspired to write it after having several boyfriends who had gone through divorce in Massachusetts. Even if you don't download the song (and you can do so - from my link above), the following sample of its lyrics should give you a laugh or two:

Matrimony may be great,
But there's a certain state,
Where a wedding's bad for your financial health,
Where if a marriage doesn't work,
The man will always be the jerk,
And lucky ladies gather in the wealth.

Where the judge's sacred duty
Is to give the wife her booty,
And do his best to drain the husband dry.
Though I know it's hard to swallow,
There are guidelines they must follow,
That will zap you if your chromosomes are Y.

If you're male,
Don't get married
In Massachusetts.
You'll only end up broke
And land in jail.
....

I should point out that, despite its women- and mother-friendly reputation and despite its sometimes-heard nickname "Planet Mommy," Massachusetts is hardly alone with this alimony problem. Other states are considering reforming their alimony laws to reflect the current economic and social realities. For a good discussion of this national trend, also mentioning the recent efforts in Massachusetts, see States Challenge Traditional Alimony, a February 15, 2008 article by Tresa Baldas in the National Law Journal.

For information about Massachusetts divorce and family law, see the divorce and family law page of my law firm website.

Habeas Corpus Survives

A bit of good news for the endangered US Constitution: A majority (five of nine) on the US Supreme Court ruled to uphold the constitutional protection of habeas corpus, even for the unpopular alleged "enemy combatants" at Guantanamo. For this we have to thank Justice Kennedy, who wrote the majority decision, joined of course by all four of the justices who actually deserve to sit on the Court (Souter, Breyer, Ginsburg, and Stevens). Although I cannot forgive Kennedy for Bush v. Gore and his other transgressions, I have to recognize that he at least did the right thing with this most recent decision. See the opinion here, and read more about it at the SCOTUS Blog.

ABA GP Solo ELDER LAW COMMITTEE Newsletter Spring, 2008
ABA General Practice, Solo and Small Firm Division

Chairs - Kenneth Vercammen, Edison, NJ and Jay Foonberg, Beverly Hills, CA

In this issue:

1. TYPES OF SPECIAL NEEDS TRUSTS
By Thomas D. Begley, Jr., Esquire
2 Elder Law 2008- Expanding and Marketing an Elder Law Practice Program at ABA Annual Meeting
3 New articles added in June, 2008 to Elder Law website:

1. TYPES OF SPECIAL NEEDS TRUSTS
By Thomas D. Begley, Jr., Esquire

There are essentially two types of special needs trusts: third party trusts and self-settled trusts. This article will discuss the features that are common to both trusts. In addition, there are pooled trusts. Pooled trusts can be either third party or self-settled. The distinction between a third party special needs trust and a self-settled special need trust is the source of funds. If the assets funding the trust are not the assets of the beneficiary but belong to a third party, then the trust is a third party trust. If the assets funding the trust are assets of the disabled beneficiary, then the trust is a self-settled trust.
Some trusts are pooled trusts in which the assets of many trusts are combined for investment purposes, but are managed individually for distribution purposes. There is a master trust document that is adopted to govern the trust. A pooled trust can be a self-settled trust or a third party trust, depending on whether the assets used to fund the trust belong to the person with disabilities or to a third party. Some pooled trusts provide that assets remaining in the pool upon the death of the person with disabilities is retained by the trust. Not all pooled trusts qualify under 42 U.S.C. §1396p(d)(4)(C). Some trusts simply pool assets together for investment purposes, but do not qualify under OBRA ‘93.
Third Party Trust
The first type of special needs trust that disability law attorneys commonly draft is a third party special needs trust, which is established by the third party with assets of the third party for the benefit of a person with a disability. Typically, these trusts are established by a parent for the benefit of a child with a disability. In drafting third party special needs trusts, the attorney need not be concerned with Medicare claims, Medicaid liens, or age limits relating to the beneficiary. There is no requirement that the state Medicaid agency be paid back funds on the death of the beneficiary. If income from the trust is distributed to the beneficiary, it may reduce or eliminate public benefits. Therefore, income should be distributed to third parties to pay for goods and services delivered to the beneficiary. Similarly, the assets in the trust must not be available to the beneficiary. Therefore, the attorney has great flexibility in structuring the trust to achieve the income, gift and estate tax goals of the settlor.
There is no federal statutory authority for a third party special needs trust. However, the Social Security administration has policy regarding the effect of these trusts on benefits.[1]
Self-Settled Trust
The federal statutory authority for a self-settled special needs trust is found at 42 U.S.C. §1396p(d)(4)(A)(payback trusts) and d(4)(C) (pooled trusts) and at HR 3443 Foster Care Independence Act of 1999 §205.[2] A self-settled special needs trust most frequently is a (d)(4)(A) trust and is referred to that way. It is established with the assets of the person with a disability. It must be established by the parent, grandparent, guardian of the person with a disability, or by a court. Only the person with a disability can be the beneficiary of the trust. These trusts are frequently used when an injured party receives money as a result of a tort action. The trust must be an inter vivos trust, rather than a testamentary trust, and it must be irrevocable. Prior to establishing the trust, the attorney must be concerned with the existence of any Medicare claim and Medicaid lien as well as claims for reimbursement from third party liability insurers. The trust cannot be established if the beneficiary is over age 65. On the death of the beneficiary, assets remaining in the trust must be used to pay back any state Medicaid agency providing benefits. There is considerably less flexibility with respect to achieving tax goals.
Special Needs Trust Comparison
Issue Third Party SNT Self-Settled SNT
Established By Third Party Parent, Grandparent, Guardian, or Court
Funded by Assets of Third Party Person with a Disability
Beneficiary Person with a Disability Person with a Disability and Nondisabled Person Only
Grantor Trust Can Be Yes
Grantor Trustee Can Be No
Discretionary Yes Yes
Inter Vivos Yes Yes
Testamentary Yes No
Revocable Can Be No
Gift Tax Annual Exclusion Can Use Cannot Use
Estate Tax Can Be Excluded Includable

Distributions Payments to Third Parties Payments to Third Parties
Disability SSA Definition SSA Definition
Pay Back Provision No Yes
Medicare Claim No Yes
Medicaid Lien No Yes
Age Limit None Under 65
Qualified Disability Trust Yes No


Copyright 2008 by Begley & Bookbinder, P.C., an Elder & Disability Law Firm with offices in Moorestown, Stone Harbor and Lawrenceville, New Jersey and Oxford Valley, Pennsylvania and can be contacted at 800-533-7227. The firm services southern and central New Jersey and eastern Pennsylvania. Tom Begley Jr. is one of the speakers with Kenneth Vercammen at the NJ State Bar Association's Annual Nuts & Bolts of Elder Law and co-author with Kenneth Vercammen, martin Spigner and Kathleen Sheridan of the 400 plus page book on Elder Law.

The Firm provides services in connection with protecting assets from nursing home costs, Medicaid applications, Estate Planning and Estate Administration, Special Needs Planning and Guardianships. If you have a legal problem in one of these areas of law, contact Begley & Bookbinder at 800-533-7227.


2 Elder Law 2008- Expanding and Marketing an Elder Law Practice Program at ABA Annual Meeting

Saturday, August 9, 2008 2:00 - 3:30 p.m.
American Bar Association Annual Meeting, New York City
Hilton New York

Speakers:
Jay Foonberg, Esq. - Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA

Charles Sabatino, director of the ABA's Commission on Law & Aging

Kenneth A. Vercammen, Esq. - co-author "Nuts & Bolts of Elder Law", Edison, NJ

Parag Patel, Esq. Iselin, NJ

Joan Burda, Ohio


Primary Sponsors: General Practice Section
Requested co-sponsors: ABA Commission on Law & Aging, Health Law Section,
YLD, LPM, Senior Lawyers Division, Real Probate & Trust Section, Tax Law Section

Topics:
Medicaid Law changes in 2006-2007- Protect yourself from inaccurate advice and malpractice
Getting referrals from other professionals
The aftermath of the Terry Schiavo case and Living Wills.
Forms you can use
Email newsletters
"Representing seniors- Doing well by doing good.-Do you know how?
- Foonberg's 10 page check list."
How to get more referrals and repeat business
How to manage telephone conversations with your clients
Marketing with written fee agreements
-Ethics and marketing without violating the Rules of Professional Conduct

Elder Law may be the biggest practice area of your career. There are 50,000 baby boomers/ day turning 60 and soon to be on Medicaid and will need legal advise. Elder Law is one of the biggest growth fields. Substantial changes in Medicaid law requires attorneys to learn ideas to avoid Medicaid/ nursing home liens.

[Contact Kenneth Vercammen, Esq. for program information 732-572-0500]

Contact American Bar Association's ITS at 800-421-0459 for registration

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
website: www.njlaws.com




3 New articles added in June, 2008 to Elder Law website:

Guardian Law Changes
Guardianship of Disabled Adults
If Undue Influence was 'Clear,' the Will of the Elderly Testatrix is Denied Admission to Probate.
If you have no Will
Letters of Administration if No Will
Letters of Instruction
Life Insurance Trusts
Action for Guardianship of a Mentally Incapacitated Person, Rule 4:86
Administration of Estates, Probate and Decedents
Answers to Probate Questions
Application to Surrogate's Court for Probate or Administration, Rule 4:80
Codicil to a Will
Compelling the Sale of Jointly Owned Houses-The Partition Suit
Elective Share of Spouse
Estate Planning/ Guardianship Interview Form
Estate/Will/Trust Inheritance Contests
Executor - Duties & Responsibilities

_______________________

-. WE PUBLISH YOUR FORMS AND ARTICLES


To help your practice, we feature in this newsletter edition a few forms and articles PLUS tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please mail articles, suggestions or ideas you wish to share with others in our Tort and Insurance Committee.

Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.

Send Us Your Marketing Tips
We are increasing the frequency of our newsletter. Send us your short tips on your great or new successful marketing techniques.
You can become a published ABA author. Enjoy your many ABA benefits.


Send us your articles & ideas

To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.

General Practice, Solo and Small Firm Division:
Elder Law Committee and the ESTATE PLANNING, PROBATE & TRUST COMMITTEE


Who We Are

This committee focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.

To help your practice, we feature in this newsletter edition a few articles and tips on marketing and improving service to clients. But your Editor and chairs can't do it all. Please send articles, suggestions or ideas you wish to share with others.
Let us know if you are finding any useful information or anything you can share with the other members. You will receive written credit as the source and thus you can advise your clients and friends you were published in an ABA publication. We will try to meet you needs.
We also seek articles on Elder Law, Probate, Wills, Medicaid and Marketing. Please send your marketing ideas and articles to us. You can become a published ABA author.

________________________________________

The Elder Law Committee of the ABA General Practice Division is directed towards general practitioners and more experienced elder law attorneys. The committee consistently sponsors programs at the Annual Meeting, the focus of which is shifting to advanced topics for the more experienced elder lawyer.
This committee also focuses on improving estate planning skills, substantive law knowledge and office procedures for the attorney who practices estate planning, probate and trust law. This committee also serves as a network resource in educating attorneys regarding Elder Law situations.
Kenneth Vercammen, Esq. co-Chair
Jay Foonberg, Beverly Hills Co-chair, Author of Best Sellers "How to
Start and Build a Law Practice" and "How to get and keep good clients', Beverly Hills, CA JayFoonberg@aol.com>

We will also provide tips on how to promote your law office, your practice and Personal Marketing Skills in general. It does not deal with government funded "legal services" for indigent, welfare cases.

KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500
(Fax) 732-572-0030
Kenv@njlaws.com
Central Jersey Elder Law www.centraljerseyelderlaw.com
NJ Elder Blog http://elder-law.blogspot.com/